472 F.

2d 49

Lucille STEELE, Plaintiff-Appellant,

v.
Elliot RICHARDSON, Secretary of Health, Education and
Welfare, Defendant-Appellee.
No. 25, Docket 72-1304.

United States Court of Appeals,

Second Circuit.
Submitted Oct. 3, 1972.
Decided Dec. 22, 1972.

Kalman Finkel, The Legal Aid Society, Carol Berkman, New York City,
for plaintiff-appellant.
Whitney North Seymour, Jr., U. S. Atty., for the S. D. N. Y.; Stanley H.
Wallenstein and Joseph P. Marro, Asst. U.S.Attys., for defendantappellee.
Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
FEINBERG, Circuit Judge:

Lucille Steele appeals from an order of the United States District Court for the
Southern District of New York, Edmund L. Palmieri, J., which granted
summary judgment to the Secretary of Health, Education and Welfare, and
denied appellant Social Security benefits as a widowed mother. The basic issue
before the Secretary was whether appellant was the "widow" of Howard Steele,
the insured wage earner, when he died. The Secretary decided that she was not,
and the district court upheld that finding.1 We disagree, and we reverse the
judgment.

Howard Steele died on December 25, 1966. Thereafter, appellant applied for
insurance benefits allegedly owing, on the account of the deceased Steele, to
her as a widowed mother pursuant to 42 U.S.C. Sec. 402(g)2 and to her children
by Howard Steele pursuant to 42 U.S.C. Sec. 402(d). Both claims were initially
denied, but, on reconsideration, the children were found entitled to benefits.

Appellant petitioned for and received an evidentiary hearing on her own claim;
the decision of the hearing examiner, which once more denied the application,
became final when affirmed by the Appeals Council. A petition for review in
the district court followed.3
3

The hearing examiner rejected appellant's claim because he found that

notwithstanding evidence that a marriage had been celebrated in Maryland on
September 28, 1954 joining appellant and Howard Steele, neither appellant nor
Howard Steele was free to marry the other. It is undisputed that appellant had
married James Artis of New York City in May 1950, and that this marriage had
never been terminated by death or legal decree. The examiner also found
evidence of a prior marriage entered into by Howard Steele and one Alice Page.
Finding that appellant's marriage to Steele was therefore invalid, the hearing
examiner concluded that she had not established that she was a widow as
defined by 42 U.S.C. Sec. 416(c). See note 2 supra. Judge Palmieri upheld this
decision without reaching the effect of appellant's prior marriage to Artis,
reasoning that "even if she were free to marry Steele . . . Steele was not free to
marry her . . . since Alice Page was still alive at the time Steele married
plaintiff and the Steele-Page marriage had never been dissolved."

Appellant has the burden of establishing the validity of her marriage to Steele.
E. g., Smith v. Finch, 426 F. 2d 814 n. 1 (4th Cir.) (per curiam), cert. denied,
400 U.S. 907, 91 S.Ct. 150, 27 L.Ed.2d 146 (1970). On this appeal, appellant
argues that New York law, which controls here,4 recognizes a presumption in
favor of the validity of the latest of successive ceremonial marriages. See, e. g.,
In re Terry's Estate, 32 Misc.2d 470, 222 N.Y.S.2d 865, 866
(Surr.N.Y.Co.1961); In re Meehan's Estate, 150 App.Div. 681, 135 N.Y.S. 723
(1st Dep't 1912). Accordingly, appellant further argues, were her marriage to
Steele tested in the courts of New York, this presumption would operate to
validate that marriage and thus establish her statutory claim to benefits. We
agree.

In Dolan v. Celebrezze, 381 F.2d 231 (2d Cir. 1967), Judge Friendly canvassed
the many New York cases that consider the presumption and concluded that its
force varies with "[a]ttendant facts and circumstances . . . in given cases . . . ."
Id. at 236, quoting In re Carr's Estate, 134 N.Y.S. ed 513 (Surr.Chautauqua Co.
1953), aff'd, 134 N.Y.S.2d 280 (4th Dep't 1954). The crucial question regarding
any evidentiary presumption is what proof is required to rebut it. See H. Clark,
Law of Domestic Relations Sec. 2.7, at 68-69 (1968). The Secretary principally
relies on two items of evidence to rebut the presumed validity of the Steeleappellant marriage: an "Application for Social Security Account Number" filed
by Howard Steele in 1940 listing Alice Page as his wife; and a 1950 marriage

license issued to James Artis and Lucille Hickmon (appellant). If substantial

evidence established that either or both of these two prior marriages were
initially valid and remained undissolved when appellant married the wage
earner Steele, then their marriage is void under New York law, N.Y. Domestic
Relations Law Sec. 6 (McKinney's Consol.Laws, c. 14, 1964), and the
presumption of the validity of appellant's marriage to Steele is successfully
rebutted.
6

Whether the presumption should be strong or limited in this case, the

Secretary's evidence of the prior Howard Steele-Alice Page marriage is not
adequate to rebut the presumption and to show that Steele was legally disabled
from marrying appellant. The evidence that Steele had in fact been married to
Alice Page was hardly overwhelming. The listing of her as "wife" in an
application for a Social Security number did not necessarily show that the union
was ceremonially blessed. Moreover, the reliability of the 1940 document is
largely undermined by a later "Employee's Request for Change in Records,"
filed in 1947. In this paper, Steele requested significant changes in his social
security records: In the 1940 document, he had listed his father as "Elijah
Steele" and his mother as "Jennie Williams"; in the 1947 correction, these were
changed to "Walter Edwards" and "Minerva Steele," respectively. These
changes cast considerable doubt on the accuracy of any identification of
relatives made by Steele previously, such as Alice Page as "wife." Moreover,
while the district judge found that Alice Page was alive when Steele married
appellant in 1954, and that neither she nor Steele had divorced the other, we
have searched the administrative record in vain for any affirmative evidence on
these questions.

Evidence of a prior ceremonial marriage between appellant and James Artis

does throw somewhat more doubt on the validity of appellant's later marriage to
Steele. The record contains a marriage license signed by the City Clerk of the
City of New York, which evidences their marriage on May 28, 1950. Both
appellant in her testimony and Artis in a signed statement admitted this
marriage; no divorce proceedings were ever instituted by either party; and Artis
was living when appellant married Howard Steele. Whatever might be the
strength of this evidence standing alone, however, appellant forcefully argues
that her prior marriage to Artis was itself void for bigamy. Appellant testified
that she had left Artis in October 1950, some five months after they were
married, upon discovering that Artis had one and possibly several living wives.
She further submitted a statement signed by Artis in which he acknowledged
that he had married one Cherry Murphy in 1923, whom he had never divorced
and from whom he had never received notice of divorce proceedings instituted
or completed. We find this statement, in which Artis confesses against his penal

interest to bigamy, particularly probative: Artis manifests a pattern of marriage

without prior divorce as well as a familiarity with divorce proceedings when
occasionally inclined to employ them.
8

To be sure, the possibility remains that the Artis-Cherry Murphy marriage was
terminated by the death of Cherry Murphy between 1923 and 1950, or by
divorce without notice to Artis. We are nevertheless unwilling to place upon
appellant the burden of eliminating these possibilities. Given the comparatively
great investigative resources of the Secretary and the apparently restricted
means of appellant, it seems more appropriate to require the agency to
undertake the substantial record searches necessary to negative the continued
validity of the Murphy-Artis marriage5 and to establish the consequent bona
fides of appellant's later marriage to Artis. We are reinforced in this view by
two distinct lines of New York authority. The first holds that a party seeking to
rebut the presumption of validity attached to a later ceremonial marriage must
himself establish that the prior marriage was "valid," including whether the
parties were "competent" to enter into it. See, e. g., In re Meehan's Estate,
supra; In re Dugro's Will, 261 App.Div. 236, 25 N.Y.S.2d 88 (1st Dep't), aff'd
mem., 287 N. Y. 595, 38 N.E.2d 706 (1944). See generally McCarter v.
McCarter, 27 Misc.2d 610, 208 N.Y.S.2d 876, 880 (Sup.Ct. Kings Co.1960),
quoting M. Grossman, New York Law of Domestic Relations Sec. 70, at 44-45
(1947).6 It follows that in this case the Secretary must prove that appellant and
Artis were competent to marry. The second suggests that the presumption
favoring a later marriage assumes greater force where, as here, the later
marriage is attacked, not by a putative first wife or children of the first
marriage, but instead by a party, like the Secretary, who is altogether a stranger
to any domestic relationship in question. See, e. g., Esmond v. Thomas Lyons
Bar & Grill, 26 A.D.2d 884, 274 N.Y.S.2d 225 (3d Dep't 1966).

Finally, we recognize that courts have on occasion found the presumption

rebutted on proof arguably comparable to the Secretary's; but they have in
general only done so when competing equities tip in favor of a claimant or
claimants under the prior marriage. E. g., Dolan v. Celebrezze, supra. Here, we
believe that on balance the equities work against the Secretary. Appellant
married Howard Steele in good faith and bore him three children. Although she
separated from him after only one year of marriage, there is force in her
assertion that because she assumed responsibility for the children of the union,
she was unable to achieve economic independence after separation. We see
little virtue in straining to hold the presumption of a valid later ceremonial
marriage rebutted in order to deny a surviving spouse her claim to financial
support after some period of cohabitation, cf. Esmond v. Thomas Lyons Bar &
Grill, supra, especially when the claim is made under the Social Security Act,

which should not be construed in a niggardly fashion to deny coverage. See

Herbst v. Finch, 473 F.2d 771 (2d Cir. 1972).
10

Summary judgment in favor of the Secretary is reversed, with instructions to

enter judgment in favor of appellant.

Both parties moved for summary judgment in the district court; the Secretary's
motion was granted

42 U.S.C. Sec. 402(g)(1) provides in part:

The widow . . . of an individual who died a fully or currently insured individual
. . . [who] has filed application for mother's insurance benefits . . . [if] at the
time of filing . . . [she] has in her care a child of such individual entitled to a
child's insurance benefit . . . shall . . . be entitled to a mother's insurance benefit.
"Widow" is defined by 42 U.S.C. Sec. 416(c) as "the surviving wife of an
individual."

42 U.S.C. Sec. 405(g)

42 U.S.C. Sec. 416(h)(1)(A) provides in part:

An applicant is the wife, husband, widow or widower . . . for purposes of this
subchapter if the courts of the State in which such insured . . . was domiciled at
the time of death . . . would find that such applicant and such insured individual
were validly married . . . at the time he died.
Although Steele died in Pennsylvania, the parties agree that he was domiciled
in New York at the time of his death.

Even within her limited means, appellant did endeavor through her "church
network" to establish that Cherry Murphy and James Artis never divorced and
that the former had not died. She wrote a letter to the brother of James Artis in
North Carolina, requesting this information in addition to the whereabouts of
James. An apparent response to this letter, over the signature of Mrs. D.
[illegible initial] Artis, stated that as far as the writer knew, the woman to
whom James had been first married was still alive. Furthermore, although this
response did not give the address of James, he was ultimately located

But see Rappel v. Rappel, 39 Misc.2d 222, 240 N.Y.S.2d 692 (Sup.Ct.N.Y.Co.
1963), aff'd mem., 20 A.D.2d 850, 247 N.Y.S.2d 995 (1st Dep't 1964) (plaintiff

wife successful in setting aside later marriage, but denied damages for
fraudulent inducement of marriage; appeal on latter point only)